Outside the Beltway

Blogger Faces Lawsuit Over Reader Comments

James Joyner · Wednesday, August 31, 2005 · 1 comment

A blogger is being sued for reader comments which are allegedly defamatory and illegally reveal trade secrets.

Blogger Faces Lawsuit Over Comments Posted by Readers (WSJ)

In a legal case being watched closely by bloggers, an Internet company has sued the owner of a Web log for comments posted to his site by readers.

Traffic-Power.com sued Aaron Wall, who maintains a blog on search engine optimization — tactics companies use to get themselves to appear higher in searches at Google, Yahoo and elsewhere — alleging defamation and publication of trade secrets. The suit, filed in a Nevada state court earlier this month, also listed as defendants several unnamed users of the blog.

At issue are statements posted in the comments section of Mr. Wall’s blog, SEOBook.com. Many blogs allow readers to post comments, often anonymously, and Mr. Wall’s blog included several reader submissions that blasted tools sold by Traffic-Power.com.

Traffic-Power.com said in the suit that confidential information about the company has been published on the blog, and it accused Mr. Wall of publishing “false and defamatory information,” but it didn’t identify any of the material in question.

Legal analysts said the case falls into somewhat murky legal territory, but that Mr. Wall may have some protection from liability under federal law. Courts generally have held that the operators of computer message boards and mailing lists cannot be held liable for statements posted by other people. Blogs might be viewed in a similar light, they said.

[…]

But Mr. Martin and other legal analysts said it was less clear how a court would view the accusation of misappropriation of trade secrets. The Decency Act doesn’t provide protection when intellectual property is posted, and a court may rule that trade secrets fall under the definition of intellectual property. State law, rather than federal law, generally applies to trade secrets.

“If the trade-secrets claim is genuine,” Mr. Wall may not have protection, said Michael J. Madison, an associate professor of law at the University of Pittsburgh. “But it’s an open question.”

Daniel Perry, an Orlando, Fla., lawyer who has closely followed Mr. Wall’s case online, said Mr. Wall may have taken on liability by posting negative comments about Traffic-Power.com himself. Another problem, he said: Mr. Wall could be viewed as a commercial competitor to Traffic-Power.com. Mr. Wall’s blog is so named because he wrote a guide called SEO Book, about search engine marketing, and he promotes the book on his site.

“To be candid, he sort of moved into this moving propeller,” said Mr. Perry, a former Orange County judge. He said courts would likely focus on how Mr. Wall responded to requests to remove material from his site, and Mr. Wall’s criticism of Traffic-Power.com. “The Internet is not your personal stump to beat up people.”

There have been few lawsuits involving blogs so far, but lawyers have said the area is fertile ground for legal actions because blogging is both increasingly popular and rife with opinions about companies and individuals. Earlier this year, Apple Computer Inc. sued a Harvard student in a California court, accusing him of publishing trade secrets on his blog, ThinkSecret.com, in violation of state law. That case is pending in Superior Court in Santa Clara, Calif.

Obviously, Wall should be accountable for what he himself has written; the First Amendment is not a license to libel or lawbreaking. The comments of his readers, however, are not his responsibility.

A single blogger can probably monitor and police the comments on his site, although there are some practical and ethical issues involved. But making that a requirement would set a dangerous precedent that simply would not work for larger Internet enterprises, conceivably including more highly trafficked blogs. The chilling effect caused by forcing sites to do away with comments–the practical result of a loss for Wall here–would be far worse than whatever damage corporations would suffer from comment anarchy.

This is an issue upon which Right and Left can agree. For example, Andrew Sullivan terms this “A blogger’s nightmare” and Juan Cole observes, “A lot of forces in US society are very upset about the emergence of an Information Democracy on the Web, and I think the courts will increasingly be invoked to close down free discourse.”

OTB-BS

Update: Full disclosure – SEOBook has appeared prominently in OTB advertisements in the last few days. These are generated by Google Adsense using an algorithm unknown to me. If I’m getting any revenue from SEOBook clickthroughs, I have no way of knowing and I may just as easily be lowering the value of the ad space by posting this article, since I may be keeping it up on the site rather than a more lucrative adstrip generated by other keywords. I simply do not know.